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Library of Congress (Agency) and Fraternal Order of Police, Library of Congress Labor Committee (Union)

[ v58 p486 ]

58 FLRA No. 120

LIBRARY OF CONGRESS
(Agency)

and

FRATERNAL ORDER OF POLICE
LIBRARY OF CONGRESS LABOR COMMITTEE
(Union)

0-AR-3626

_____

DECISION

April 24, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Suzanne R. Butler filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the exceptions.

      The Arbitrator found that the grievance, pertaining to the use of official time, was not barred by an earlier filed unfair labor practice (ULP) charge and, therefore, was arbitrable. The Arbitrator directed the parties to proceed to a hearing before her on the merits of the grievance. The Agency excepts to the Arbitrator's arbitrability determination.

      For the following reasons, we find that the exceptions are interlocutory. However, we further find that extraordinary circumstances exist warranting review at this time. On review, we deny the exceptions.

II.      Background and Award

      On July 31, 2000, the Union filed a charge against the Agency alleging a violation of § 7116(a)(1) of the Statute. In the charge, the Union asserted that the Agency failed to comply with the official time provisions of the parties' collective bargaining agreement when it denied a request by the then Union Chairman to use official time "off premises" in order "to meet with the Union's counsel and consultant . . . ." Award at 4. The Union subsequently requested withdrawal of the charge, which the Regional Director granted.

      Nearly two years later, on June 7, 2002, the Union filed a grievance alleging that a different Union Chairman was denied a request for official time to meet with an official of the U.S. Capitol Police Board. According to the Union, there was a practice of allowing previous Union Chairmen "to go offsite from time-to-time to conduct union business . . . ." Id. at 5. The Agency "returned the grievance without action" on the basis that the Union had previously elected to file a ULP charge "over this same issue[.]" Id. at 5. Arbitration was then invoked and the parties agreed that the "first question" before the Arbitrator was whether the grievance was arbitrable. Id. at 1.

      The Arbitrator ruled that the grievance was not barred by the earlier-filed ULP charge, finding that both the factual circumstances and the legal theories behind the charge and the grievance were not the same. As her "Interim Award," the Arbitrator directed the parties to proceed to a hearing on the merits of the grievance. Id. at 9.     

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency concedes that its exceptions are interlocutory but claims that review is warranted under "prevailing FLRA precedent." Exceptions at 4. In support, the Agency cites United States Dep't of the Treasury, IRS, Los Angeles District, 34 FLRA 1161 (1990) (IRS). The Agency maintains that the Arbitrator misapplied § 7116(d) of the Statute because "the issues in the ULP and the grievance were the same, the issues were raised in the prior ULP, and the Union had discretion to select the ULP procedure." Exceptions at 6. The Agency also asserts that the award fails to draw its essence from the agreement. The Agency cites Article 40, Section 40.04, entitled "Exclusivity of Remedies." [n2]  Id. at 9.

B.     Union's Opposition

      The Union asserts that the decision in IRS has been modified by more recent Authority precedent. Citing United States Dep't of the Interior, Bur. of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 55 FLRA 1230 (2000) (Dep't of the Interior), the Union states that the Agency has failed to establish that interlocutory review is warranted. [ v58 p487 ]

IV.     Analysis and Conclusions

      Section 2429.11 of the Authority's Regulations provides: "[T]he Authority . . . ordinarily will not consider interlocutory appeals." In arbitration cases, this means that ordinarily, the Authority will not resolve exceptions filed to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Health and Human Services, Ctrs. for Medicare and Medicaid Services, 57 FLRA 924 (2002); AFGE National Council of EEOC Locals No. 216, 47 FLRA 525, 530 (1993). In this case, the Arbitrator addressed only the arbitrability of the grievance and ordered the parties to proceed to a hearing on the merits of the grievance. Therefore, the Arbitrator did not address all of the issues submitted to arbitration and, as the Agency acknowledges, the exceptions are interlocutory.

      However, in cases where exceptions are interlocutory in nature, but raise a plausible jurisdictional defect, extraordinary circumstances may exist warranting review of the exceptions. In Dep't of the Interior, 55 FLRA 1230, the Authority stated that "interlocutory review should be reserved for those extraordinary situations where it is necessary. In particular, such review should only be undertaken where the arguments challenging an award in fact present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of the case." 55 FLRA at 1232. In so stating, the Authority modified the "broad holding" of IRS, on which the Agency relies in this case, under which any jurisdictional challenge, plausible or otherwise, that would control the outcome of the case warranted interlocutory review. [n3]  Id.

      The Authority did not, however, explain what would constitute a plausible jurisdictional defect. Where a lack of jurisdiction is found to exist, clearly, a challenge that was based on an asserted jurisdictional defect would be plausible. See United States Dep't of Defense, NIMA, St. Louis, Mo., 57 FLRA 837, 837 n.2 (2002) (Member Pope dissenting as to result) (review of interlocutory exception warranted where arbitrator erred in determining that grievances concerning employee compensation were arbitrable). To give full effect to the Dep't of the Interior standard, a "plausible" jurisdictional defect cannot simply refer to a jurisdictional defect that is found to exist. Rather, a plausible jurisdictional defect is one that, on its face, is a credible claim, the resolution of which will advance the ultimate disposition of the case.

      In this case, the Agency asserts that the Arbitrator erred, as both a matter of law and contract, in finding that the grievance was not barred by an earlier-filed ULP charge. If the Agency is correct, and the Arbitrator erred in finding that the grievance was arbitrable under § 7116(d) of the Statute, there would be no need for the parties to proceed to a hearing on the merits of the grievance. As such, there would be no need for the parties to incur any additional, unnecessary expenditures in processing the merits of the grievance, including the time and costs associated with another arbitration hearing. Conversely, if there is no bar to the continued processing of the grievance, the parties may proceed to a hearing on the merits of the grievance, with the knowledge that the jurisdictional issue has been fully resolved.

      In our view, the Agency's exceptions in this case raise a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of this case. [ v58 p488 ] Consequently, review of the exceptions is warranted at this time. On review, and for the reasons explained below, we find that the exceptions do not establish that the award is deficient.

      The Agency claims that the factual circumstances in the charge and the grievance are the same. Specifically, the Agency asserts that the charge and the grievance "both emanated from the same factual circumstances -- the [Agency's] denial of official time for Union representatives for off site meetings." Exceptions at 7. The Agency also disputes the Arbitrator's reliance on the fact that two years elapsed between the filing of the charge and the grievance and that different Union representatives filed the charge and grievance. The Agency also asserts that the Arbitrator "confused `facts' with `issues'[,]" in finding that the charge and the grievance involved off-site meetings with different individuals. Id. at 9.

      In our view, the grievance did not arise out of the same factual circumstances as the charge. The charge and the grievance not only involved requests for official time by different Union representatives but also involved denials of those requests by different Agency officials. The purposes for which the official time was requested varied as well. In the charge, the purpose of the request was to meet with a labor consultant to discuss pending arbitration cases. In the grievance, the official time was requested to meet with the Chairman of the U.S. Capitol Police Board to discuss work related issues within the Agency's police force. Although both requests may have involved "off-site" meetings, the requests were clearly different.

      Applying the standards of § 7116(d) of the Statute, which the parties agreed was applicable to their agreement, the Agency has not demonstrated that the Arbitrator erred in finding that the grievance and charge were based on different factual circumstances. As such, the Agency has not established that the Arbitrator erred in finding that the charge did not bar the grievance  [n4]  As there is no bar to the processing of the grievance, the parties may now proceed to a hearing on, and the Arbitrator may resolve, the claimed denial of official time.

      In sum, we deny the Agency's exceptions.

V.     Decision

      The exceptions are denied.

File 1: Authority's Decision in 58 FLRA No. 120
File 2: Member Pope's Opinion

Footnote # 1 for 58 FLRA No. 120 - Authority's Decision

   Member Pope's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for 58 FLRA No. 120 - Authority's Decision

   Article 40, Section 40.04 of the agreement provides, in pertinent part:

Matters under this Agreement which also fall within the coverage of a statutory procedure may, at the discretion of the aggrieved officer, be raised under the appeals procedure applicable to that matter or under the negotiated procedure, but not both. An officer will be deemed to have exercised his or her option under this provision at the time he or she initiates an appeal or grievance, which ever [sic] comes first.

Award at 2. The Arbitrator found that this provision "essentially tracks Section 7116(d) of the Statute." Award at 7. The Arbitrator also found that the parties agreed that the "appropriate test" for determining the arbitrability of the grievance "is the same" test applied by the Authority under § 7116(d), namely, "whether the underlying legal theories and factual circumstances are the same." Id. at 8. As the agreement provision is to be interpreted in the same manner as § 7116(d), we construe the Agency's essence exception as raising the same contrary to law claim and we do not address it separately.

Footnote # 3 for 58 FLRA No. 120 - Authority's Decision

   In IRS, the Authority held that extraordinary circumstances would exist to immediately resolve an interlocutory exception claiming that an arbitrator lacked jurisdiction because the matter was not grievable under the Statute. The Authority based this holding on a conclusion that it would not serve the purposes and policies of the Statute to refuse to resolve that controlling question of jurisdiction as an interlocutory matter when its immediate resolution could advance the ultimate resolution of the case. See 34 FLRA at 1164.

Footnote # 4 for 58 FLRA No. 120 - Authority's Decision

   In view of this finding, there is no need to address whether the legal theories underlying the charge and grievance were substantially similar as § 7116(d) requires that both requirements -- same set of factual circumstances and substantially similar theories -- must be present before a bar can be found. See, e.g., Olam Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, Calif., 51 FLRA 797, 802 (1996).